Former President Donald Trump is facing two gag orders in his New York and Washington D.C. trials, with the latter prompting a fierce debate over how courts should balance free speech interests with their duty to protect the integrity of a trial.
D.C. District Court Judge Tanya Chutkan ultimately rejected President Trump’s attempts to remove the gag order when, on Oct. 29, she lifted the administrative stay on it.
Posting to Truth Social on Oct. 30, President Trump derided Judge Chutkan as a “TRUE TRUMP HATER” who was “incapable of giving me a fair trial.” He also noted her appointment by President Barack Obama, harkening back to his prior criticism the Department of Justice (DOJ) cited while requesting a gag order.
During the previous week, on Oct. 25, New York Supreme Court Justice Arthur Engoron levied the former president with $10,000 in fines for allegedly violating a gag order on him speaking about one of the court’s law clerks. Mr. Trump’s attorney, Chris Kise, denied that his client’s comments outside of the courtroom were referring to the clerk but said they were instead directed at Mr. Trump’s former attorney, Michael Cohen, who had testified that day, The Associated Press reported. Judge Engeron kept the fine in place.
The initial order came after President Trump suggested on Truth Social that the clerk was the girlfriend of Senate Majority Leader Chuck Schumer (D-N.Y.). A separate $5,000 fine was imposed when the post remained on President Trump’s campaign site.
Attorneys have disagreed over the orders, which come as the nation gears up for a presidential election in which President Trump is one of the leading contenders. Assuming he wins the GOP nomination, his main opponent will almost certainly be the man whose administration is prosecuting him for how he challenged the results of their previous contest.
It’s an unusual situation that has raised questions about the scope of courts’ authority and interests in preserving robust debate in elections.
In her Oct. 29 order, Judge Chutkan reiterated her and the Justice Department’s concerns about ensuring a fair trial.
“As the court has explained, the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice,” she said.
President Trump has vowed to appeal the ruling.
Hans Von Spakovsky, a former member of the Federal Election Commission, disputed Judge Chutkan’s justification for the order.”Trump has a fundamental constitutional right to criticize the prosecutor, the judge, and any other government official and to raise questions about the credibility of any potential witnesses in his case,” Mr. Von Spakovsky, who’s also a senior legal fellow at The Heritage Foundation, a conservative think tank, said in a statement to The Epoch Times.
“Such criticism doesn’t come even close to violating the statute she cites as her justification for her abusive order, 18 USC 1512, which is concerned with violence, threats, and intimidation of witnesses.”
President Trump’s attorneys John Lauro and Todd Blanche had argued that the DOJ didn’t produce any evidence that any potential witnesses felt harassed or that President Trump’s statements led to harassment.
University of Michigan Law School professor Barbara McQuade denied that was necessary.
“You can just say this is a public case, you can’t talk about it,” Ms. McQuade told The Epoch Times.
She noted that the judge “can be proactive and prophylactic in entering an order to prevent harassment.”
“She doesn’t have to wait for it to happen,” Ms. McQuade said.
What Can Trump Actually Say?
Judge Chutkan’s order has been criticized as vague by both the American Civil Liberties Union (ACLU) and President Trump’s attorneys, among many others. It prohibits the GOP frontrunner from targeting “all interested parties,” including some that the order directly specifies.
Judge Chutkan, on Oct. 31, denied the ACLU’s request to file an amicus brief on the gag order but the organization, typically critical of President Trump, made several arguments about the impact of the order on his speech. According to the ACLU’s brief, President Trump “cannot possibly know what he is permitted to say, and what he is not.” His attorneys also questioned the scope of “interested parties,” arguing that it could include “every American voter.”
Ms. McQuade supported a gag order and told The Epoch Times that while Judge Chutkan could provide more clarity surrounding the word “targeting,” she wasn’t legally required to do so.
The expert acknowledged some “gray area” in determining what President Trump could say in response to witnesses who may use events related to the case to attack him. However, she suggested that Judge Chutkan provide additional clarification around that and perhaps require President Trump to get prior approval before responding.
Ms. McQuade stepped down as U.S. attorney for the Eastern District of Michigan in 2017 as President Trump’s attorney general at the time requested dozens of departures from government lawyers.
Judge Chutkan ultimately dismissed criticisms of her language while arguing that the explanation surrounding her order—including the opinion she issued and the hearing on Oct. 16—provided “substantial context for and examples of the kinds of ‘targeting’ statements that could result in” significant risks to the proceedings. She said that “there is no meaningful basis to interpret ‘interested parties’ as covering anyone” other than the parties to the suit and their counsel.
The judge’s Oct. 29 order restoring the gag order uses two of President Trump’s Truth Social posts to further illustrate the boundaries she intended to set with her language.
After the order was issued, President Trump posted an attack on the “election rigging” Biden administration, saying his trials would include “massive information and 100% evidence” of alleged rigging. Judge Chutkan said that while that post didn’t violate her order, another referring to former White House chief of staff Mark Meadows “almost certainly” did. In that post, President Trump speculated that Mr. Meadows wouldn’t lie about the election or take a plea deal.
“Some people would make that deal, but they are weaklings and cowards, and so bad for the future of our Failing Nation,” reads President Trump’s post, which was published after Judge Chutkan temporarily stayed her gag order. “I don’t think that Mark Meadows is one of them, but who really knows?”
Judge Chutkan wrote that President Trump’s “statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a ‘lie’ ‘[made] up’ to secure immunity, and it attacks him as a ‘weakling’ and ‘coward’ if he provides that unfavorable testimony—an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case.”
Judge Chutkan’s initial order clarified that President Trump could make statements criticizing the Biden administration, proclaim his innocence, allege a politicized prosecution, and attack the policies of political rivals, such as former Vice President Mike Pence.
President Joe Biden addresses the nation on the conflict between Israel and Gaza and the Russian invasion of Ukraine, as seen through the window of the Oval Office, in Washington on Oct. 19, 2023. (BRENDAN SMIALOWSKI/AFP via Getty Images)
The primary argument that President Trump has presented is that Judge Chutkan’s order prevents core political speech about an event—the 2020 election—that will likely be part of the campaign. Mr. Pence has since dropped out of the race for the Republican presidential nomination but could presumably still play a role in campaigns against him. Witnesses could also include other high-profile figures, such as former Attorney General William Barr, who have already criticized President Trump.
Legal Experts Disagree Over Implications for Free Speech
Besides the type of statements Judge Chutkan’s order would cover, broader and longer-lasting implications of her order are under question as well. Since the formal order was issued, a variety of law professors and former prosecutors have differed as to its appropriateness and constitutionality.
According to Ms. McQuade, both Judge Chutkan’s order and Judge Engoron’s stood on firm legal ground. Judge Chutkan also found support from Harvard Law School professor Laurence Tribe, as well as two former federal prosecutors, Dennis Aftergut and Frederick Baron.
“The First Amendment is not absolute,” Ms. McQuade told The Epoch Times. “There are many reasonable restrictions on it. And when you are a party to a court case, the judge can gag you completely if he wants to, if he has a good reason.”
The Biden administration and Judge Chutkan have similarly cautioned that President Trump’s statements might prompt intimidation of people involved with the case.
The U.S. Supreme Court could theoretically take up an appeal from President Trump regarding his case in Washington, potentially setting a game-changing precedent for how cases such as these are handled and defendants run for office. Writing in Slate, Mr. Aftergut and Mr. Baron argued that Judge Chutkan’s order was “elegant” and crafted in a way that protected her from appeal.
Their opinions contrasted sharply with that of Jonathan Turley, a professor at George Washington University Law School, who accused Mr. Smith of waging a “war on free speech.”
“Smith continues to litigate with a sense of utter abandon, showing his signature lack of concern for the implications of his legal arguments,” Mr. Turley wrote for The Messenger.
It remains to be seen how Judge Engoron’s order will fare in the legal system. The New York Times reported on Oct. 26 that Mr. Kise said he was evaluating a potential appeal and that he had “significant concerns about the constitutionality of limiting President Trump’s right to comment on what he observes in the courtroom.” Judge Engoron rebuffed the idea that his order violated President Trump’s First Amendment rights but agreed to reevaluate the fine during an Oct. 26 hearing, The Associated Press reported.
According to the AP, Judge Engoron said: “I don’t think it’s impinging on anybody’s First Amendment rights to protect my staff.”
Like Ms. McQuade, Brett Tolman, a former U.S. attorney from Utah, said judges enjoyed substantial authority in limiting defendants’ speech but also questioned how Judge Chutkan applied that authority in this particular case.
“It is an entirely different dynamic when you have the leading candidate for the presidency in one political party being prosecuted in multiple cases, and how do you balance the fact that he’s running for election and needs to be able to inform those that would or would not vote for him,” Mr. Tolman said.
President Donald Trump speaks at a rally for Sen. Marco Rubio (R-Fla.) at the Miami-Dade Country Fair in Miami on Nov. 6, 2022. (Joe Raedle/Getty Images)
“You have almost a push to get the case done in a way that is absolutely unprecedented.”
Noting the legal and factual complexity of the types of white-collar cases President Trump is facing, Mr. Tolman said they wouldn’t “get to trial for years.”
President Trump posted to Truth Social multiple times on Oct. 30 asking why the Biden administration hadn’t brought the case before the Republican frontrunner started his presidential campaign.
“Why didn’t Crooked Joe Biden tell his Injustice Department to file the lawsuits and Indictments against me 3 years ago, instead of right in the middle of my campaign for President?” President Trump asked on Oct. 30.
“You’re setting a BAD precedent for yourself, Joe. The same can happen to you. These Third World Biden Indictments, which should never have been filed, would have been tried and over with years ago. My SleazeBag Opponent shouldn’t be able to do this during my campaign, OR BEFORE THE ELECTION!”
Mr. Lauro suggested during an Oct. 16 hearing that the trial, currently set for March 2024, should be rescheduled until after the election. Judge Chutkan rejected that idea, arguing that the trial wouldn’t yield to the election cycle.